The Eleventh Circuit Court of Appeals ruled in the case of United States v. William C. Campbell that the former mayor of Atlanta will not be given relief. In affirming the conviction, the court rejected Campbell's arguments that he had been deprived of his Sixth Amendment right to counsel by disqualifying his attorney of choice and that his thirty month prison sentence was unreasonable. Convicted of three tax offenses, Campbell like Libby had no prior criminal record. In finding the sentence acceptable, the court stated that it had "acknowledged Campbell's accomplishments as mayor and his devotion to this children." The court rejected Campbell's arguments that: "(1) his status as a 'first offender with an exceptional personal history who cannot be considered likely to commit further crimes, 2) his service to the public, and 3) statistics that indicate that Campbell's sentences greatly exceed the average sentences imposed upon those convicted of tax crimes." I guess Campbell can't call up President Bush for his "get our of jail free card."

With the conviction of former Hollinger International CEO Lord Conrad Black and three other former executives on three counts of mail fraud -- Lord Black was also convicted of obstruction of justice -- the next issue will be figuring out what the likely sentencing range will be. The defendants were acquitted on the Can-West non-compete transaction and the "perks" counts, along with the RICO and tax charges, so the primary counts of conviction (aside from the obstruction) occurred in 1999 and 2000, before a major amendment in November 2001 to the Federal Sentencing Guidelines provisions for fraud offenses that increased the potential sentences significantly. Under the Guidelines provision, Sec. 2F1.1, in place for the time of the conduct, the base offense level is 6. The gain attributable to the transactions outlined in count one of the indictment alleges a diversion from Hollinger of approximately $32 million, so using that figure yields an increase of 16 levels. The government will probably argue that the specific amounts each defendant received should not be the basis for the calculation because they were all part of a single scheme and therefore are liable for the full amount that Hollinger lost. As Prof. Doug Berman points out on the Sentencing Law & Policy Blog (here), even acquitted conduct can be included in the calculation, so the amount could be much higher because the government alleged before trial that Black and the others realized over $60 million. In addition, Sec. 2F1.1 includes a two-level increase for "more than minimal planning" for the offense, and an additional two levels could be added for abuse of a position of trust or use of a special skill. That would bring the Guidelines calculation to 26, which results in a sentencing range of 63 to 78 months for the defendants.

Lord Black's lawyers have already indicated that they will argue for a loss calculation of a bit less than $3 million for him based on the amount he received from the transactions on which the jury convicted, which would limit the increase to 13 offense levels. The would result in a sentencing range of 46-57 months. Will Lord Black's lawyers also ask the court to take into account the factors that led President Bush to commute the sentence of I. Lewis Libby on his obstruction charge? There are similarities between the two men, no doubt, so don't be surprised to see a Libby argument.

In addition to the calculation outlined above, Lord Black could face additional sentencing enhancements for obstruction of justice, a two-level increase, and leadership role in the offense, which is a four-level enhancement. If both apply, his Guidelines offense level could be as high as 32, which carries a sentencing range of 121 to 151 months, or 33, with a sentence of 135-168 months. In addition, there would likely be a term of supervised release and a fine, along with any forfeiture or restitution the court might order. While Judge Amy St. Eve is not bound by the Sentencing Guidelines, she is a former federal prosecutor, so I suspect she will adhere fairly closely to them.

In looking at the indictment (here), I noted for the first time that it does not contain a conspiracy count, and it's not clear why it is not in there when prosecutors did include a RICO charge, a much more difficult charge to prove. This is the rare corporate crime case in which a conspiracy is not included as a type of unifying charge to frame the prosecution's case. If a conspiracy count had been in the indictment -- and if the jury convicted Black and the others -- then the entire amount of the diversion from Hollinger could have been used in the Guidelines calculation. As it stands, Lord Black and the other three defendants are likely to be sentenced to a term of imprisonment, with Black's punishment at least in the six to eight year range, and the others probably around three to five years at a minimum. (ph)

As discussed in an earlier post (here), U.S. District Judge Lewis Kaplan asked federal prosecutors for their opinion regarding how much it would cost to mount a reasonable defense to the charges in U.S. v. Stein, involving the KPMG tax shelters. While the U.S. Attorney's Office demurred on that request, a number of the defense lawyers chimed in with their estimate on the cost of defending a complex tax case involving 20 million documents, multiple defendants, and a trial likely to be measured in months rather than weeks. According to a New York Law Journal article (here), the amounts run from a low of $10 million all the way to $44 million -- each! Given that there are eighteen defendants involved in the case, even using a low-end estimate means an expenditure that dwarfs the annual budget of many small cities. A significant portion of the cost involves coordinating and searching through the mountain of documents in the case. While Stein may be unique in the high volume of records, in a corporate crime prosecution involving conduct over a couple years it would not be a surprise to find the universe was over a million documents of some possible relevance, and of course the devil is in the details of all those documents for mounting a defense.

The article also adds another cost estimate to the list in the earlier post of defense costs in white collar prosecutions. It notes that the defense for E. Kirk Shelton, former vice-chairman of Cendant Corp., was over $24 million. The old Ev Dirksen line is starting to come to mind. (ph)

CBC is reporting that Lord Conrad Black has been convicted of three counts of mail fraud and one count of obstruction of justice, and not guilty on other counts of mail/wire fraud, RICO, and tax fraud. He was not convicted on the largest transaction, the Can-West non-compete, and found guilty on a charge related to another non-compete. The other three defendants, Peter Atkinson, Jack Boultbee, and Mark Kipnis, were also found guilty on some fraud counts and acquitted of others. Further updates on the verdict later. (ph)

U.S. District Judge Jeffrey White did not accept the argument made by counsel for Troy Ellerman that his client should receive a more lenient sentence based on the rationale offered by the President when he commuted the sentence of I. Lewis Libby. As discussed in an earlier post (here), Ellerman pleaded guilty to contempt and filing a false declaration charges related to his leaking to San Francisco Chronicle reporters the grand jury transcripts of Barry Bonds and other athletes as part of the Balco steroids investigation. The judge insisted on a plea agreement that allowed him to sentence up to the maximum thirty-three month term authorized by the Sentencing Guidelines, not the two-year sentence the prosecution and defense agreed to earlier. As it is, Judge White only imposed a thirty-month prison sentence, ironically the same sentence Libby received for his obstruction and perjury convictions, but not the fifteen month sentence Ellerman sought based on the "Libby motion." In rejecting the defense argument, the Judge noted that "[u]nder President Bush's reasoning, any white-collar criminal should receive little or no time." An article in The Recorder (here) discusses the sentencing. (ph)

U.S. District Judge Reggie Walton upheld the two-year term of supervised release imposed on former Administration aide I. Lewis Libby, albeit "with great reservation," after the President commuted the thirty-month term of imprisonment (opinion below). Under the Supreme Court's decision in Schick v. Reed, 419 U.S. 256 (1974), a sentence commutation can impose a punishment not otherwise authorized by statute so long as the punishment does not violate the Constitution. In Schick, President Eisenhower commuted a death sentence for an Army sergeant convicted of murdering an eight-year old girl to life imprisonment without possibility of parole, even though there was no statutory authorization to refuse to allow parole. Judge Walton expressed concern that allowing for a term of supervised release, which the statute conditions on a prior term of imprisonment, effectively encroaches on Congress's authority to enact punishments, but the court applied Schick as the closest controlling precedent and allowed the remaining punishment to stand. Needless to say, no one will appeal this decision because both the Special Counsel and the defendant supported that interpretation of the law.

With the supervised release brushfire doused, is the controversy over the Libby commutation -- and the whole issue of the leak of Valerie Plame's role with the CIA -- finished? According to the President, that is what should be the case. In a press conference (here), President Bush, in response to a question about the commutation, stated:

I'm aware of the fact that perhaps somebody in the administration did disclose the name of that person, and I've often thought about what would have happened had that person come forth and said, I did it. Would we have had this, you know, endless hours of investigation and a lot of money being spent on this matter? But it's been a tough issue for a lot of people in the White House, and it's run its course and now we're going to move on. [Italics added]

While it may be done for the President, the discussion of the Grant of Executive Clemency has not died down. In an editorial in the Detroit Free Press (here), Michigan Attorney General Mike Cox wrote:

Any time our criminal justice system ensures that the truth-telling function of our system is alive and viable, it is a cause for celebration for all citizens. Telling the truth under oath can be uncomfortable; it can be embarrassing and lead to problems for one's friends and associates, but fudging or protecting one's friends or family does not and cannot commute the necessity for truth-telling.

Simply put, our system of justice depends on truth-telling. Without that rigor, without that pressure, without that compunction to tell the truth, our system of justice will die. As a nation, we must demand that our public officials honor that pact. I have no doubts that Libby is basically a good man. At the same time, a jury of his peers has affirmed his guilt for lying under oath.

If truth is a pillar of our system of justice, then not telling the truth dramatically damages the structural support of that same system of justice. Lying under oath deserves to be punished. And President Bush was wrong to commute Lewis Libby's sentence.

Each week seems to bring a new twist in the case of former HealthSouth CEO Richard Scrushy and former Alabama Governor Don Siegelman. The two men recently received substantial prison terms (82 and 88 months, respectively), and were taken into custody immediately to begin serving their sentences rather than being given a reporting date after the hearing, which is common in white collar crime cases. As part of the appeal of the convictions, Scrushy's lawyers have taken the unusual step of filing a motion (available below) in the Eleventh Circuit asking the court to issue subpoenas to internet service providers to secure what counsel believes are e-mails between two members of the jury during the trial and deliberations that could help establish a claim of juror misconduct. The e-mails, which appeared mysteriously after the conviction, were the subject of hearings before the district court, which found that they could not be authenticated and therefore denied the new trial motion based on them. Now, Scrushy is asking for the subpoenas to preserve the evidence in case they can be authenticated, which could result in a new trial or at least another evidentiary hearing.

The problem with the request is that it is unprecedented, as best I can tell. Federal Rule of Criminal Procedure 17(c) governs the issuance of subpoenas, and all the reported cases I have seen focus on grand jury subpoenas and trial subpoenas -- no case discusses a court of appeals authorizing the issuance of a subpoena as part of its own proceeding. The governing standard for issuance of a subpoena depends on the stage of the case. For a grand jury subpoena, the documents need only be relevant to the grand jury's investigation, while a trial subpoena can only be issued for documents and objects that will be admissible under the evidence rules. Rule 17(c) clearly does not contemplate an appellate court issuing a subpoena, because it states that a court may direct the production of the materials "at a time prior to the trial or prior to the time when they are to be offered in evidence . . . ." It is not clear what standard the Eleventh Circuit would even apply to determine whether to issue the subpoena, assuming it finds it has the authority to do so under Rule 17(c) Appellate courts do not make factual findings, as a general matter, and the requested subpoena is not for admissible evidence but to preserve evidence if the court decides to remand the case for further consideration of the e-mail issue. As an alternative, Scrushy's brief relies on the All Writs Act, 28 U.S.C. Sec. 1651, which authorizes a court to issue "all writs necessary or appropriate in aid of their respective jurisdictions . . . ." While courts have broad authority under this provision, Scrushy's lawyers are requesting something that is unusual, if not unique, in a criminal appeal.

According to Scrushy's brief, he has been designated for assignment to the Beaumont, Texas, federal correctional complex, which includes low, medium, and high security facilities. For a complete review of the motion, check out WSFA12 (here). (ph)

Former Newark, New Jersey, Mayor Sharpe James and a person with whom he had a personal relationship were charged in a 33-count indictment with mail/wire fraud, corruption, housing fraud, and tax charges. The wide-ranging indictment (here) includes pages listing improper payments for personal trips with a city credit card provided to James, and property transactions in which his co-defendant purchased property from the city and then flipped it at a much higher price. The credit charges range from $11.25 at a hotel in the Bahamas to over $2,000 for hotel reservations on Martha's Vineyard over Labor Day, totaling over $58,000 according to the indictment. James left the Mayor's office in 2006 after five terms, but in a quirk that appears to be unique to New Jersey, he also served since 1999 as a member of the state Senate, from which he is retiring after this year. An Asbury Park Press article (here) discusses the charges. (ph)

Being the CEO of a publicly-traded company carries with it significant responsibilities, including avoiding making public statements that call into question compliance with the federal securities laws and the judgment of the corporation's leader. Unfortunately, the CEO (and co-founder) of Whole Foods may have come awfully close to violating SEC rules, and certainly called into question his judgment, when he posted a number of entries on Yahoo investor bulletin boards touting his company and trashing rival Wild Oats Markets. The postings (indexed here), made under the pseudonym "Rahodeb" -- a play on his wife Deborah's name -- were cited by the FTC in its antitrust lawsuit to block the merger of the two leading natural food supermarket chains. The statements could well violate SEC Regulation FD, which mandates broad disclosure of any corporate statement, and possibly even Rule 10b-5 if the statements inflated the value of Whole Foods' shares. It's not clear whether a claim for either violation would stick, but I suspect Whole Foods' corporate counsel was more than a little miffed to learn the CEO was making statements that fall outside the normal run of corporate disclosures without telling anyone. My colleague Steven Davidoff, on the increasingly important M&A Law Prof Blog notes (here): "In the end, the Whole Foods-Wild Oats saga highlights for attorneys the problems of head-strong clients/CEOs who likely do not take advice well, as well as the perils of second requests. But just because you have a dumb CEO still doesn't justify the FTC actions challenging Whole Foods' proposed acquisition of Wild Oats. As far as I know, there is no stupidity provision in the antitrust laws though some may argue there should be one in the law generally." (ph -- and I confess to stealing Steve's blog post title)

Former Counsel to the President Harriet Miers did not appear before a House Judiciary Subcommittee to discuss her role in the firing of nine U.S. Attorneys, thereby risking a contempt of Congress as part of the confrontation with the White House over the assertion of Executive Privilege. In a letter to Committee Chairman John Conyers and Subcommittee Chairwoman Linda Sánchez on July 10, Miers' attorney said that pursuant to the direction of President Bush, she would not even appear before the Subcommittee. In response, Conyers and Sánchez wrote back that, while a witness may assert a privilege to refuse to answer questions, the subpoena recipient still must appear before the Subcommittee, even to refuse to testify. (see press release here). Former White House political director Sara Taylor did appear before the Senate Judiciary Committee and answered some questions, although she asserted Executive Privilege in response to others and may well face the same contempt citation. According to an AP story (here), the House Judiciary Subcommittee voted 7-5 to sustain Sánchez's ruling that the claim of Executive Privilege permits the witness to refuse to appear was out of order, a prelude to beginning contempt proceedings. The contest between the White House and Congress will only escalate from here. (ph)

Like the latest dance craze, Libby motions are popping up all over the place. As nicknamed by blog co-editor Ellen Podgor, among others, the Libby motion is an argument raised by defense counsel seeking a reduced sentence for their clients based on the rationales offered by President Bush for commuting the thirty-month prison term of former senior Administration aide I. Lewis Libby. In the upcoming sentencing of Troy Ellerman, the defense filed a supplemental brief (available below) aligning the attorney who leaked the grand jury testimony of Barry Bonds and other athletes about their steroid use in the Balco investigation with the erstwhile former chief of staff to Vice President Cheney. The brief argues:

Living with the guilt, torment and uncertainty of where his life was headed since he committed these acts, then losing two full professional careers, and suffering wide-spread public ridicule in the media has already resulted in Mr. Ellerman being held to a “higher standard” for his actions than other defendants. In this regard, Mr. Ellerman has already been punished in a fashion similar to that of Lewis Libby. However, a key point of differentiation is that Mr. Ellerman, unlike Mr. Libby, is going to serve time in a federal prison. Given that fact, it is clear that whatever prison sentence the Court imposes, Mr. Ellerman is going to have to pick up the pieces of his life and start anew after he is released from custody.

Unlike the Libby commutation, the defense is not arguing for a complete pass on a prison term, only that the term be at the bottom of the Federal Sentencing Guidelines range, which is fifteen months. Ellerman and federal prosecutors earlier agreed to cap his sentence at two years, but U.S. District Judge Jeffrey White refused to accept the plea without a longer term of imprisonment (see earlier post here). Federal prosecutors have continued to recommend a two-year term, but the agreement now allows a sentence up to the maximum Guidelines range of thirty-three months.

Will the Judge buy the Libby argument? I suspect the answer is "No" because Judge White has shown no inclination to shower much mercy on Ellerman for disclosing documents in violation of a court order and compounding it by accusing prosecutors of leaking the information. But then, who would have guessed that Libby would not serve a day in jail, so stranger things have happened. As it stands, everyone facing sentencing now seems to have a soft spot for Libby. (ph)

The payment of legal fees is a hot issue in white collar crime cases these days because of the enormous costs of defending multiple investigations and, in some instances, indictments that could result in an effective life term of imprisonment if there's a conviction. In the KPMG tax shelter prosecution (U.S. v. Stein), U.S. District Court Judge Lewis Kaplan asked prosecutors to give him some estimate of what a "reasonable, privately-funded defense would cost in this case." The Judge asked for the response as part of his determination of the appropriate remedy to grant because the government pressured the accounting firm to cut off attorney's fees for its former employees and partners. Prosecutors from the Southern District of New York gave a judicious -- if unhelpful -- response: to paraphrase, "We have no clue." The letter to the court (available below) is interesting because it gives estimates of the cost of private counsel in a number of high profile cases based on media and other reports, including Jeffrey Skilling ($70 million), Richard Scrushy ($21 million in the HealthSouth fraud trial), Dennis Kozlowski ($26 million), John and Timothy Rigas ($25 million). We would add to the list the claim for over $15 million in attorney's fees for Douglas Lake (Westar Energy -- see earlier post here), and Lord Conrad Black, whose fees have exceeded $20 million (see earlier post here).

In most of the cases, the corporation for which these defendants worked were obligated to pay the attorney's fees under broad indemnification provisions in place at most larger businesses, especially publicly-traded corporations. And for the public companies, they often have to reveal the costs of defending their officers, directors, and employees when the numbers become "material" to their financial statements. Of course, attorney's fees become a problem when the company goes into bankruptcy and the D&O insurance policy runs out.

In discussing what would be a "reasonable" defense cost in the Stein prosecution, the federal prosecutors couldn't help taking a shot at the defense lawyers, while abjuring their ability to determine what is (or is not) reasonable: "There are many avenues of legal work some defense counsel have indicated (formally or informally) they are considering pursuing which the Government believes will be fruitless and, in any event, likely to lead to results that are completely irrelevant and inadmissible. But what work a defense attorney should actually do to provide a 'reasonable' defense, and what those services would reasonably cost, does not strike us as something on which we could appropriately express an opinion that would be helpful to the Court." (ph)

Former White House political director Sara Taylor responded to a subpoena for testimony before the Senate Judiciary Committee by answering a few questions posed by the panel but refusing to answer others on the instruction of the President, who invoked Executive Privilege. The hearing is part of the continuing investigation of the firing of nine U.S. Attorneys in 2006, and the role the White House in those decisions. According to Taylor's prepared statement (here) submitted to the Committee:

The current dispute between the Executive and Congressional branches of our government is much bigger than me or my testimony here today. In light of the President's direction, I will answer faithfully those questions that are appropriate for a private citizen to answer while also doing my best to respect the President's directive that his Staff's communications be privileged. To the extent that I am not able to answer questions because of the President's directions, I commit to abide by a judicial determination that may flow from a subpoena enforcement action against the White House. While I may be unable to answer certain questions today, I will answer those questions if the courts rule that this Committee's need for the information outweighs the President's assertion of executive privilege.

While refusing to discuss deliberations at the White House, Taylor did testify that she was not aware of any involvement of President Bush in the decision. She stated:

Taylor: "I did not speak to the President about removing U.S. attorneys."

Sen. Leahy: "Did you attend any meeting with the president since the 2004 election in which the removal and replacement of U.S. attorneys was discussed?"

Taylor: "I did not attend any meetings with the president where that matter was discussed."

According to a Time article (here), Senator Arlen Specter raised the possibility of a contempt citation for Taylor for answering some questions but not others instead of invoking Executive Privilege to any queries. Whether the Judiciary Committee will seek to hold her in contempt is the next step if Congress wishes to challenge the privilege assertion. (ph)

The sentencing of former Qwest CEO Joseph Nacchio is currently set for July 27, and prosecutors and defense counsel filed sentencing documents with the district court on July 6 (available below). Nacchio was convicted on nineteen counts of insider trading for sales of Qwest stock in 2001 that resulted in a gain of approximately $52 million; the jury acquitted him on twenty-three other counts. All of the sales took place before the company announced a significant decline in its business and accounting problems that caused the stock to drop by over 90%.

The government recommends a sentence of 87 months based on the Federal Sentencing Guidelines calculation that uses the $52 million gain to enhance the prison term. Under the Guidelines, Nacchio's offense level is 27, which leads to a sentencing range of 70 to 87 months, and prosecutors argue that abusing his position as CEO to profit at the expense of investors supports a sentence at the top of the Guidelines range. The sentencing calculation applies the 2000 version of the Guidelines because the insider trading took place before a substantial increase in the recommended sentencing for economic crimes took effect at the end of 2001. If the more severe version of the Guidelines was in effect, Nacchio would be looking at a sentencing range of 151 to 188 months. As it is, even if U.S. District Judge Edward Nottingham sentences him to the lower end of the Guidelines range, he is still looking at a prison term of nearly six years. Nacchio argues that the gain should only be caculated at $1.8 million based on a "civil damages analysis" that looks to the effect of the undisclosed information on the value of the stock. That figure would yield a Guidelines sentencing range of 41 to 51 months.

Nacchio's lawyers have argued for a downward departure from the Sentencing Guidelines "because of extraordinary circumstances concerning the effect that a lengthy period of incarceration will have on the health and potentially even the life expectancy of two of his immediate family members, and because of Mr. Nacchio’s prior good works." Charitable and civic works are frequently cited in white collar crime cases, but as the U.S. Attorney's Office notes in its filing, both grounds are usually not the basis for a downward departure unless the situation is unusual (for family matters) or extraordinary (for charitable works). (ph)

The House Judiciary Committee discussing Libby's sentence commutation is set for today, with Professor Doug Berman of the Sentencing Law & Policy Blog scheduled to speak. For details see his blog here. And while you are over at Doug Berman's blog, be sure and check out Margy Love's Commentary.

One can't change the course of events the President started in issuing this commutation. But clearly, this is the right time to begin the discussion on why sentences have reached the "excessive" level. This is most definitely a time to put aside politics and explore why non-violent first offenders are being given "excessive" sentences. For additional discussion see my piece in the Yale L.J. Pocket Part titled, Throwing Away the Key.

A DOJ Press Release issued by the United States Attorney of the Central District of California reports that "[a]n Orange County man who ran a real estate investment scam that lured victims with bogus claims of large returns on investments in commercial real estate developments was sentenced today to six years in federal prison." The Press Release notes that this individual was "a former adjunct professor of real estate finance at the University of Southern California, [who] admitted that he ran two schemes involving purported real estate development projects in Chicago and Las Vegas."

The Trac Reports are out with statistics from March and David Burnham and Susan B. Long, co-directors at the Transactional Records Access Clearinghouse write that:

"Federal criminal prosecutions in March of 2007 jumped to 10,286 -- 22% over the level in the previous month. Fueling this monthly surge were large increases in immigration (up 17%), drug prosecutions (up 24%), and weapons (up 35%)."

And looking at the statistics for white collar crime, they were up this month see here and here. But they are still significantly down from a year ago, and even more-so from five years ago. (For a discussion of the February report see here).

Peter Baker and Dan Eggen of the Washington Post report that President Bush, through his counsel, issued a statement telling former White House Counsel Harriet Miers and political director Sarah Taylor that they should hold their comments because executive privilege applies. The topic they were subpoenaed to testify about relates to the "firing" of U.S. Attorneys. This will mean that these two individuals will not be answering questions - at least for now- pursuant to the subpoenas issued to them. Or will they? The Washington Post also raises the issue of whether these two are bound by this Executive statement.

The question between the legislative and executive branches could likely end up in the courts with the issue being whether the scope of the Executive Privilege extends to their testimony, testimony that includes emails sent on a Republican National Committee email account (see here).

But what if Miers and Taylor were to defy the President and talk. Who would be charged with making them stay silent? Perhaps the more interesting question would arise if these two women decided that this country needs to hear what they have to say. But after seeing the power of the President in commuting the Libby sentence, this could make for a most difficult time.

According to Al.com (AP) former Alabama Governor Don Siegelman will be spared from having to pay restitution. There were clearly problems related to the original request for restitution (see here) in that Siegelman had been found not guilty on the count upon which the restitution order was premised. But in being $181,325 richer by the court telling him that he need not pay the restitution, Siegelman may have moved closer to a possible appeal by the government. The government still has time to decide whether to proceed on an appeal arguing that the sentence given to the former governor was too light. But if the government decides to challenge the sentence, it seems likely that a Libby Motion will be forthcoming. With allegations raised that the indictment may have been politically influenced (see here), a Libby Motion might present some interesting commentary.